Complainant, accused offer troublesome testimony
Noah Paul Lavergne, 20, of Oromocto, is charged with inviting underage girl he met through Cadets program to touch his penis in grocery store parking lot
Warning: This article features graphic descriptions of a sexual act involving a minor.
Though only two witnesses testified, a sex-crime trial Tuesday proved to be quite complex, with the complainant getting confused about how old she was at the time and the defendant contradicting himself on the stand.
Noah Paul Lavergne, 20, of Christine Street in Oromocto, stood trial in Fredericton provincial court Tuesday on a count of inviting or counselling a minor to touch him for a sexual purpose.
At the outset of Tuesday’s proceedings, Crown prosecutor Kathleen Jacobs withdrew a related charge of summary sexual assault, but the trial on the other charge went ahead.
Judge Scott Brittain heard from only two witnesses in the trial Tuesday: a teenage girl whose identity is protected by a court-ordered publication ban, and the defendant.
One might think it would be a simple case, coming down to who the judge believed, but the law is far more nuanced than that, and both witnesses’ testimony posed significant issues for the Crown and defence lawyers, as well as the court.
The 16-year-old complainant testified she was 12 when she joined the Cadets Canada program at Base Gagetown in Oromocto, and it was through that program that she first met Lavergne.
She was initially in a different section of Cadets, she said, but was eventually moved to a new one of which Lavergne was in charge.
“He was my section commander, I believe,” said the girl, who was testifying by closed-circuit TV link to the courtroom from another room in the Fredericton courthouse.
“We weren’t really friends. We just talked once in a while.”
She said they started communicating through Snapchat online on her smartphone, noting she would ask Lavergne about the Cadets program and protocols from time to time.
She didn’t know how old Lavergne was at the time, she said, and she couldn’t recall if they ever discussed her age.
‘I gave him a handjob’
In the fall of 2020, the witness said, the tone of the chats changed.
“He asked me to send him photos of my privates,” she said. “I did so, but I didn’t feel comfortable.”
On Nov. 23, 2020, she said, Lavergne messaged her, upset over troubles with his girlfriend and looking to talk.
“He asked me if we could meet up. I said no. He called me to say he was going to pick me up,” the complainant testified.
During that call, she said, Lavergne asked her if she’d give him a handjob, referring to a sexual act involving her stroking his penis with her hand.
She refused, she said, but Lavergne picked her up in a car near her house anyway.
Court heard Lavergne drove to the parking lot of the Sobeys store in Oromocto.
“He asked me to give him a handjob,” she said, noting she didn’t recall how she responded.
“He pulled down his pants … I gave him a handjob.”
This all happened in the parking lot, she said.
“It lasted about 10 minutes,” the witness said, noting Lavergne ejaculated.
At one point, Lavergne went into the grocery store to buy jugs of water. She couldn’t recall if she went inside with him.
She couldn’t remember at what time of day it occurred, but she said it was daylight, and it was raining at the time.
The witness said she couldn’t remember how busy or slow it was in the store parking lot at the time.
The girl said she was positive the incident occurred Nov. 23, 2020.
Issue with her age
Initially, she said she was 13 years old at the time, as it was before she turned 14 in late 2020.
But later in her direct testimony, the girl pivoted, asserting she was 14 when the inappropriate conduct happened.
“This all happened a little bit after I turned 14,” she said.
But given the date of birth she provided to the court, she would have turned 14 several weeks later.
When Crown prosecutor Kathleen Jacobs tried to point out the girl’s 14th birthday would have been after Nov. 23, 2020, the witness insisted she was 14 years old when the incident occurred.
Defence lawyer Alex Pate questioned the girl further on cross-examination about how old she was when she gave Lavergne the handjob. She confirmed when her 14th birthday was, and she said it definitely happened after that.
Jacobs objected to Pate’s line of questioning, noting the girl had testified already that sexual touching occurred Nov. 23, 2020.
“There appears to be some confusion about the date,” Pate said.
He also grilled her on why she chose to go for a drive with Lavergne after he had asked for a handjob over the phone and she refused.
The girl confirmed she was at home with her parents when Lavergne had called, so Pate asked her why she didn’t just tell her parents about how she’d been propositioned instead of accompanying someone she said had just made her uncomfortable.
“It’s hard to tell your parents about that stuff,” she said.
Defendant’s denials
Lavergne testified in his own defence, and he denied he’d ever asked the girl for a sexual favour, but he did confirm that she’d given him a handjob in that parking lot.
He confirmed they’d likely met through the Cadets program on base, though he couldn’t recall if he’d been her superior officer. He held the rank of sergeant, he said, and while he didn’t remember her rank, it would have been a lesser one.
Lavergne minimized how much authority he had over junior Cadets, testifying he could only give them orders if he saw them misbehaving.
He said he started chatting with the girl outside of the program in May 2019. Later in 2020, he said, he was opening up to her about things that were troubling him.
“There were a lot of personal things that were discussed,” the defendant said.
In the fall of 2020, he was enrolled in a trade school, was working and had an on-the-job placement for his studies, Lavergne said, and he wasn’t juggling his many responsibilities adeptly.
Furthermore, he said, he was having “a lot of relationship issues” with his then-girlfriend.
“I was stretched pretty thin,” the defendant said, noting he leaned on the complainant.
“She said she was there if I wanted to talk.”
He called her because he was having a rough day and asked if they could talk as he drove around Oromocto to run errands, he said, and the girl agreed.
He stopped at Sobeys to pick up jugs of water, and the girl accompanied him inside.
As he loaded the jugs into the back of his vehicle, he said, all his troubles seem to hit him at once.
“I kind of just broke down and started crying and everything,” Lavergne said. “I just wasn’t in the right headspace.”
When she was cross-examined by Pate, the girl said Lavergne never cried or broke down.
Lavergne testified when they got back into the car, the girl was rubbing his back to console him and make him feel better, but then her hand started to move down his body.
“Then she started feeling me up,” he said.
He’d never asked her for a handjob, he said, and he’d never pulled his pants down. He said she initiated it on her own.
There were a lot of people around in the parking lot when she did it, he said.
“It was packed,” Lavergne said. “There was loads of traffic.”
This was at about 4 or 5 p.m. that afternoon, he said.
“I was in a vulnerable state… very emotional, very stressed,” the defendant said. “I wasn’t sure what to do.”
Conflicting stories
When questioned by his lawyer, Lavergne said he didn’t know how old the girl was at the time, but he thought she was 15 or 16.
When she cross-examined the defendant, Jacobs suggested he wilfully decided to remain in the dark about the girl’s age.
“You didn’t take any steps to determine how old she was, did you?” the prosecutor asked.
That’s when Lavergne testified he had asked her how old she was when they first met in Cadets in 2019.
“I asked, ‘What’s your age?” Lavergne said, adding she’d answered she was 15 years old.
Jacobs said minutes earlier in the trial, he said he didn’t know how old she was. She asked him if that meant he didn’t believe her when she originally told him how old she was.
Lavergne sat silently in the witness box for a surprisingly long pause, looking down with a panicked look on his face.
“I believed her,” he finally answered.
He appeared confused, and that’s when he asked for a break.
Brittain advised him he was under oath, and if he needed a break, that was OK, but he wouldn’t be able to talk to anyone about his testimony, including his lawyer.
The judge asked him if he needed to go to the washroom, and Lavergne said he did.
Brittain paused the trial but directed all those in the courtroom - which included his family - remain in the room while the defendant went to the washroom.
When the cross-examination resumed, Lavergne confirmed that when he was arrested in June 2021 and questioned by an RCMP officer, he told that Mountie he believed the girl was 15 at that time.
Jacobs pointed out the girl couldn’t have been 15 years old in 2019 and in 2021, and she asked him to explain the discrepancy.
Once again, Lavergne went silent and stared at the floor, and after a significant pause, he said, “I got it in my head.”
The court had to recess once again because the prosecutor was having an issue with her laptop and needed to charge it. That took about 20 minutes, and during that entire time, Lavergne sat in the witness box, his face and head in his hands, rubbing his temples and running his fingers through his hair, clearly distressed.
When the trial resumed, Jacobs showed the defendant printouts of a text message he’d sent to a friend of the complainant in mid-2020, before his arrest but after he found out the girl had filed a complaint with the RCMP.
Lavergne confirmed he’d sent it.
In that message, he had denied he’d had any sexual contact with the girl, claiming he’d never do anything like that with someone who was only 14 or 15 years old.
Jacobs asked him why he denied it when he knew it had happened, and Lavergne answered, “Because I was scared.”
The prosecutor suggested the denial stemmed from his knowledge that he’d done something wrong.
She also asked him if he thought she was 15 years old when he met her why he didn’t notice if she attended Oromocto High School at the same time he did.
“[The complainant] didn’t go to your high school, did she?” Jacobs asked.
“I wouldn’t know,” he said.
Lavergne said he never saw her there, but that didn’t mean she wasn’t old enough to be in high school. He said he knew of others from Oromocto who attended Fredericton High School and Leo Hayes High School.
However, court also heard that Lavergne’s younger sister, who was around the same age as the complainant, attended the same middle school as her and had been in the Cadets program at the same time as well.
The complainant testified she knew of the sister but that they weren’t really friends.
Given the girl’s testimony about the incident occurring after she’d turned 14, Jacobs asked Lavergne when the handjob happened, and he confirmed it was Nov. 23, 2020.
Questioned again as part of a limited right to redirect, Pate asked his client why he thought it happened on that date.
“Everyone keeps saying it happened on that day,” Lavergne said, adding he doesn’t have a specific recollection of the date on which it occurred.
Closing arguments
The complainant and the accused were the only witnesses called in the trial, so after Lavergne was done on the witness stand, the case moved onto closing arguments.
Pate said an acquittal must be entered because the Crown had failed to establish two essential elements of the alleged crime.
First up - the date.
The charge specifies Nov. 23, 2020, as the date of the offence, he said, not a date range, and the girl’s testimony about it happening after her 14th birthday calls that into question.
“The complainant was given a multitude of times to correct the fact she was 14 at the time of the incident,” the defence lawyer said.
“The date that the incident actually happened is of critical importance.”
Furthermore, he said, there’s doubt as to whether Lavergne actually invited the complainant to touch him sexually.
He argued her story that she went for a drive with the accused even after refusing a request for a handjob doesn’t make sense.
The conflicting stories offered by her and his client raise a reasonable doubt, Pate said.
Jacobs said there’s other evidence before the court establishing the proper timeline, notably the text message Lavergne sent and his arrest, which happened long before the girl’s 14th birthday.
Furthermore, she argued, while the girl was confused about her age, she was clear about the specific date. She never wavered from it being Nov. 23, 2020.
The girl gave specific detail about what happened, she argued, pointing to her description of him pulling down his pants, repeatedly asking for a handjob and ejaculating.
Conversely, the prosecutor said, Lavergne contradicted himself on the witness stand several times, and his demeanour while he testified called his evidence into question.
“Obviously, Mr. Lavergne hesitated in a lot of his responses,” Jacobs said.
“Mr. Lavergne’s testimony is not credible.”
Pate countered that if the complainant is to be found credible, the court shouldn’t ignore her evidence about how old she was at the time, which throws the timing of the incident into question.
Brittain reserved his decision on the trial to Aug. 16.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Whether she was 14 or 15. She is still underage. And he is an adult. I don't understand why this is confusing.